The Future of Indian and Federal Reserved Water Rights

The Winters Centennial

Edited by Barbara Cosens and Judith V. Royster

Publication Year: 2012

On January 6, 1908, the Supreme Court ruled that when land is set aside for the use of Indian tribes, that reservation of land includes reserved water rights. The Winters Doctrine, as it has come to be known, is now a fundamental principle of both federal Indian law and water law and has expanded beyond Indian reservations to include all federal reservations of land.

Ordinarily, there would not be much to say about a one hundred-year-old Supreme Court case. But while its central conclusion that a claim to water was reserved when the land was reserved for Indians represents a commitment to justice, the exact nature of that commitment—its legal basis, scope, implications for non-Indian water rights holders, the purposes for and quantities of water reserved, the geographic nexus between the land and the water reserved, and many other details of practical consequence—has been, and continues to be, litigated and negotiated. In this detailed collection of essays, lawyers, historians, and tribal leaders explore the nuances of these issues and legacies.

Front Cover

Title Page

Copyright

Contents

Foreword

On January 6, 1908, the U.S. Supreme Court handed down its decision in Winters v. United States, forever altering the rights of Indian tribes and the landscape
of western water law. The federal government had brought suit against irrigators upstream of the Fort Belknap Indian Reservation in Montana, seeking
to enjoin their water diversions that interfered with the Gros Ventre and Assiniboine Tribes’ use of water on the reservation. Although the United States...

Acknowledgments

We would like to thank the following for all their work and dedication in planning,
organizing, and hosting the 2008 Winters centennial conference that formed the foundation of this book.
From the Utton Transboundary Resources Center, University of New
Mexico School of Law: Sanford Gaines, former Director; Marilyn O’Leary, former Director; Ruth Singer, former Administrator; Susan Kelly, Director; Darcy Bushnell, Program Director; Joe M. Stell, Water Ombudsman Program; Pamela Phelan, Administrator; and Torild Kristiansen, Administrative Assistant....

Introduction

The U.S. Supreme Court announced its decision in Winters v. United States in 1908. Ordinarily there would not be much to say about a hundred-year-old Supreme Court case, the holding of which has been repeatedly reaffirmed by the Supreme Court itself, as well as by many other courts. Winters is not an ordinary case. Its central conclusion, that a claim to water was reserved when land was reserved for Indians, indeed represents a commitment to justice...

PART I: The Winters Doctrine

1: The Legacy of Winters v. United States and the Winters Doctrine, One Hundred Years Later

On January 6 one hundred years ago, the U.S. Supreme Court held that the establishment of an Indian reservation carries with it a reservation of water. Although grounded in Supreme Court precedent addressing the interpretation of treaties, including the understanding of tribes in ceding territory and natural resources, the case was to become the first in the development of a doctrine recognizing an implied water right whenever necessary for the purpose intended by Congress in establishing any federal or Indian reservation: ...

2: The Primary Cases of the Reserved Rights Doctrine: Reenactments of the Oral Arguments

This chapter presents introductions to and re-creations of the U.S. Supreme Court oral arguments in the three most important cases of the reserved rights doctrine: Winters v. United States, Arizona v. California, and United States v. New Mexico. In the oral argument re-creations the participants were asked to role play. Thus the statements made should be taken as theater and an interpretation of history, not necessarily the opinion of the person making the argument....

3: Winters in Its Historical Context

John Shurts is the author of Indian Reserved Water Rights: The Winters Doctrine
in Its Social and Legal Context, 1880s–1930s. The book places the case we’re commemorating in its historical context. His work is also important in a broader context. One of the questions that we often discuss when we’re talking about settlements is who really benefits. Is it the tribes? Or is it the non-Indians who are getting the benefits? And you’ll see from John’s review of history that the question was first asked almost the day after the...

PART II: Winters and the Contemporary Landscape

4: Winters and the Contemporary Landscape

Today’s western water world is very different from the one in which the Winters case was promulgated—or even the one in which Arizona v. California and United States v. New Mexico were issued.1
In 1908 the West was barely beyond being a frontier. In the past several decades it has been one of the fastest-growing areas in the United States. During the 1990s the West gained more than ten million in population. Five western states are usually among the list of ...

5: One Hundred Years after Winters: The Immovable Object of Tribes’ Reserved Water Meets the Irresistible Force of States’ Reserved Rights under the Equal Footing Doctrine

This essay marks the one hundredth anniversary of Winters v. United States, the U.S. Supreme Court opinion that proclaims for Indian tribes a right to enough water to fulfill the ultimate purpose for which their reservations were established—as homelands.1 Given the scarcity of water proximate to many Indian reservations,2 especially in the arid West, the right to water is tantamount to a right to survive. However, while tribes have repeatedly invoked the case to secure water rights to meet their needs,3 has Winters really withstood ...

6: Indian Water Rights: The Era of Settlement

This year, 2008, is the one hundredth anniversary of the Winters doctrine. One hundred years ago the seminal Indian water rights case, Winters v. United States, established the defining principles of Indian reserved water rights that continue to govern Indian water rights today.1 Under the Winters doctrine, Indian tribes possess significant rights to water as of the date the reservation was established, which are not lost even if they are not used....

7: Post-decree Administration of Indian Water Rights in Multijurisdictional Settings

As a result of the general stream adjudications presently ongoing in many of the western states, water rights decrees have been and will be entered that include water rights for Indian tribes. Administration of these tribal water rights through the state administrative systems creates a number of difficulties, both legal and practical. Administration through federal and tribal agencies, either alone or in conjunction with the state agencies, also creates legal and practical problems. This article will examine the legal parameters and the ...

PART III: Case Studies in the Winters Doctrine

8: Results Following Litigation: The Wind River Tribes/Big Horn River

The Big Horn litigation was a general stream adjudication in Wyoming state court involving the water rights of the Shoshone and Arapahoe Tribes of the Wind River Reservation. Susan Williams represented the tribes in the Wyoming adjudication and successfully argued the case before the U.S. Supreme Court. Jeff Fassett was the Wyoming state engineer from 1987 to 2000; during that time he was involved with all the policy and technical aspects of the Big Horn adjudication. Craig Alexander leads the Indian Resources Section in the ...

9: The Pyramid Lake Paiute Water Rights

The Pyramid Lake Paiute Tribe is among those whose reserved water rights were adjudicated during the period between Winters and Arizona v. California, which John Shurts referred to as “the work of Winters.” Similar to other tribes whose reserved water rights were adjudicated during that time, the Pyramid Lake Paiute were decreed a small amount of water for existing irrigation. Although the representatives of the United States discussed water for fisheries, it was determined that the national interest favored awarding water for a new ...

10: The Boundaries of Winters—When the Courts Alone Are Not Enough to Protect Indian Reserved Rights

The Yurok Tribe, the largest tribe in California, with more than five thousand
members, occupies a small portion of its ancestral lands in Northern California. The reservation straddles the Klamath River from its mouth at the Pacific Ocean upriver approximately forty-seven miles to the confluence with the Trinity River at the Yurok village of Weitchpec. The Yurok Reservation, created in the late 1800s, was “ideally selected for the Yuroks,” a fishing people; the river then “abounded in salmon and other fish.”1 In 1861...

11: The Fort Belknap: Water Compact

One hundred years after the U.S. Supreme Court issued an injunction against upstream diversions that prevented water from reaching the Fort Belknap Reservation, the tribes of Fort Belknap are closing in on a settlement protecting all of their reserved water rights. Woldezion Mesghinna is a long-time consultant for the tribes. John Allen has been a member of their Water Committee, which participates in water negotiations. Chris Tweeten has chaired the Montana Reserved Water Rights Compact Commission throughout negotiations ...

As the first snows of winter for the 2000 water year started falling in the high country, Judge Barry Wood issued his ruling against the Nez Perce Tribe’s Winters claims for instream flows in Idaho’s Snake River basin.1 Judge Wood, the presiding judge in the Snake River Basin Adjudication (SRBA), handed down his ruling in a courtroom in Twin Falls, Idaho, 286 miles by air, 390 miles by road, and 630 miles by river from the Nez Perce Reservation. Reluctantly tying the courtroom and the reservation together for the duration of the court ...

13: Off-Reservation Instream Flows: The Nez Perce Settlement

The claims of the Nez Perce Tribe in Idaho were raised in the Snake River Basin Adjudication (SRBA). The off-reservation claims to instream flows for fisheries were addressed in a comprehensive settlement ratified by Congress in 2004. Steven Moore, an attorney with the Native American Rights Fund, has represented the Nez Perce Tribe in the SRBA since 1995. Rebecca Miles, former vice chairwoman of the Nez Perce Tribal Executive Committee, has focused her efforts as a tribal leader on water rights and fisheries. Michael ...

As discussed in chapter 1, the U.S. Supreme Court has extended the concept
of reserved water rights to non-Indian federal reservations. In fact, most of the considerations of reserved water rights by the Court since 1963 have been in the context of non-Indian federal reservations, and these rulings are included in the term “Winters doctrine.”1 The Court has articulated a very narrow construction of the scope of the implied right for non-Indian federal reservations, raising the issue of whether the same narrow construction ...

15: A New Deal for a 1933 Water Right: The Black Canyon of the Gunnison Instream Flow Controversy

The federal and state governments began clashing over the proper judicial forum for federal reserved water right claims soon after Arizona v. California, in which the Supreme Court extended the Winters doctrine to include federal lands such as national monuments, wildlife refuges, and national forests.1 The United States argued in favor of federal courts because its claims were for federal lands and would be determined under federal law. The western states, eager to maintain their traditional control ...

PART IV: The Post-Winters World

16: The Future of Winters

To begin, I would like to frame our look at the future. As I do that, let’s imagine ourselves in 1908 and how we would be looking at the future then—what expectations would we have had and what would we never have anticipated?
First, I think it would be reasonable to conclude that we would anticipate continuing competition between non-Indians and the tribes as we looked forward from 1908. The competition was real and ripe in 1908, and that’s what ...

17: Will the Winters Commitment to Justice Endure? It Depends on Us

I began my presentation in my native language of Cayuse because it’s only appropriate, as I try to articulate one cultural perspective with regard to something as precious as water—the giver of all life—is, that I recognize all those who have gone before as I begin this presentation.
I want to begin at a point important to us as native people. And that is to go back to that time of creation. When the Creator gave us all of the tools, all of the various gifts that include land, that include people, that include a way of life—water was one of those special gifts of the ...

Appendix A: Winters v. United States

Appeal from the United States Circuit Court of Appeals for the Ninth Circuit.
Statement of Justice McKenna followed by opinion.
This suit was brought by the United States to restrain appellants and others from constructing or maintaining dams or reservoirs on the Milk River in the state of Montana, or in any manner preventing the water of the river or its tributaries from flowing to the Fort Belknap Indian Reservation....

Welcome to Project MUSE

Use the simple Search box at the top of the page or the Advanced Search linked from the top of the page to find book and journal content. Refine results with the filtering options on the left side of the Advanced Search page or on your search results page. Click the Browse box to see a selection of books and journals by: Research Area, Titles A-Z, Publisher, Books only, or Journals only.